**4.3 Different quality test: a matter of interpretation**

A further inquiry into the notion of quality is necessary. This discussion points to the various quality tests the buyer may alleged non-conformity of goods. In fact, this raises a debate in trying to clear the confusion surrounding the basis of the seller's liability for the non-conformity of goods. This discussion, in turn, makes it necessary to choose between various quality tests.

Against this background, the Act's default rule in Article 255 para 2 appears narrow and limited in its content and scope. On its face, this provision does not rely on any notion of quality, with the only relevant question seemingly being whether the goods are fit for "the purposes for which goods of the same description would ordinarily be used". In other words, the Uniform Act only seems concerned with whether the goods are fit for their ordinary purposes and not with quality. Rather, quality is a broader notion that may include not only fitness for ordinary purposes, but a number of other aspects such as the goods' physical state and condition, intrinsic qualities and features, safety, durability, appearance, finish, and freedom from minor defects17. It is an undeniable fact that these other aspects of quality could be attributable to the dynamic decisions of individuals and group choices and satisfaction based on information gathering relating to a particular commodity [11]. Further exploration of the problem centres on the considerable evidence that quality variation is greater in group unanimity than in personal preferences over certain goods. Here, the commercial buyer may be inclined to conform and to choose goods required by group customers in the market.

As a general rule under the Uniform Act, conformity of the quality of the goods will be met if and only if the usage criterion is also satisfied18. In fact, the commercial utility of the goods seems to be the guiding rule to the commercial buyer under the Uniform Law in ascertaining the seller's responsibility. This can be best explained by the fact that the utmost preference to the commercial utility of the goods by the commercial is guided by several different ways in which interpersonal influences impact variety-seeking behaviour of consumers [12]. In fact, changing social habits may require merchants to select a variety of items appropriate to the demands of divergent contexts and audiences with the view of acting in conformity with consumers' preferences. Understandably, consumers' individual choices tend to conform to or diverge from the choice of another group of consumers [13]. It follows therefore that the material conformity of the goods to the commercial buyer is guided by individual and divergent preferences of its end users. The result of the non-respect of both material and functional quality or either of the qualities, often insinuates a breach of contract. In a case where the quality is deemed essential, the breach may result in a fundamental breach with *the consequence that the buyer may either ignore the contract or request the total substitution of the purchased good*19.

Conversely, many domestic legal systems have used varied notions in ascertaining the ultimate default rule of conformity of the goods in order to safeguard the buyer's satisfaction. Notions of quality such as "average, "merchantable," "acceptable, or "satisfactory quality" have been the measuring yardsticks meanwhile "fitness for an ordinary or a common purpose" is merely one of the components

<sup>17</sup> Sale of Goods Act § 14(2)–(2)(B).

<sup>18</sup> As per the position in the civil codes of Cameroon (art 1641), Côte d'Ivoire (art 1641) and France (art 1641).

<sup>19</sup> Id, art 283.

#### *Banking and Finance*

referred to in some legal systems to make a sound judgement on the notion of quality or to know whether the goods meet the required standard of quality20.

The above approach can be said to be associated with the merchantability test, which obtains with some common law systems. This test is viewed as comprising more than just the saleability of the goods as those terms in the parties' contract (with description, fitness for purpose, and acceptance being other relevant aspects of merchantability) [14].

#### *4.3.1 Ethical values*

Ethical value is an emerging applied subject. It is still currently debated as it is applied to all aspects of business conduct, the manufacturing of goods, and the quality standard of goods. In general, ethical values appear to contribute to the development of legal systems in which contracts are enforced fairly, and bribery and corruption are less prevalent, enabling business entities to have equal access to legal process and equal protection under the law.

At the international level for instance, private initiatives such as the principles laid down in the United Nations Global Compact covering issues such as human rights, labour, environment and anti-corruption aim to assist its member countries to comply with the international standards required on these issues. In Africa, ethical values are known and recognised in international and national sales contracts as one of the solutions to the defective goods as from the manufacturing process.

An ethical value contractual clause can be express or implied in the contract of sale. When implied, they may be inferred from trade and usages. Whether expressly or impliedly in a contract of sale, they become part of the contract and may be enforced, or their violation sanctioned, in the same way as with any other term. However, the parties agree on their express stipulation [15].

In Cameroon, for instance, most organised professions and some trade associations have codes of practice which set out ethical behaviour for members in their dealings with their clientele21. For instance, the company in charge of distributing energy makes available to the public an e-mail address for anyone who wants to make a complaint and report any violations of their Code of Business Conduct and Ethics. A clause ensuring ethical code and conduct is prior inserted in the contract signed by customers before they benefit from the services of the company. This is done in favour of its customers.

In line with the above example, it should be pointed out that in most, almost all contracts of sales of goods, including both domestic or international contracts, the quality of goods is not restricted to its physical appearance; it also has to comply with any other requirements which are prescribed by the law or subject to trade and usages22. Therefore, if the origin of the goods prescribes an ethical value standard at production, the standard will definitely constitute a quality of the goods. As a result, the requirement of quality will not be met if the goods produced do not meet with the ethical standard as required. It could therefore be agreed that people incorporate more variety into their consumption decisions when their behaviour is subject to public scrutiny [16].

**251**

*Sales and Conformity of Goods: A Legal Discourse DOI: http://dx.doi.org/10.5772/intechopen.93035*

required to determine the breach.

*4.3.2 Good manufacturing practice*

commerce27.

It is not easy to determine the non-conformity based on the ethical value23. Such difficulty is due to the hidden character of its nature and also to the fact that it does not physically influence the physical feature of the goods. If the breaching party does not of good faith disclose or cure the defect, an expert may sometimes be

Unless the parties have agreed otherwise, failure from the seller to deliver the goods in conformity with the ethical standards amounts to a breach of contract. In particular, when the seller is required to deliver goods that are fit for the purpose for which goods of that nature are commonly used or when a special request on an ethic (such as health and environmental considerations) was made known to the seller24.

GMP refers to the "Good Manufacturing Practice". This is a well-known regulation whose purpose is to ensure the appropriate manufacturing process that would impact on the quality of the products. Good Manufacturing Practice is a series of regulations that are binding on the contracting business parties, (is agreed upon) requiring food producers, manufacturers, pharmaceutical companies, and packagers of drugs to ensure that their products are safe, pure, and totally effective. These regulations are then meant to ensure a level of quality approach to manufacturers of goods in order to protect consumers from contracting for non-effective and dangerous goods. In summary, Good Manufacturing Practice plays a paramount role of quality assurance that ensures that products are consistently produced and controlled to the quality standards appropriate for their intended use and their legal requirements. In some cases, it is simply required by the marketing board or in some countries by the government department in charge of regulating trade and

The buyer remedy will be its rights of redress25 and claim for damages26.

Sometimes, GMP is referred to as Cgmp- meaning "Current Good

products in meeting the required standards28.

gmp1st.com/index.htm>, Accessed on October 24th, 2009.

 Uniform Act, art 255 para. 1.0. Uniform Act, art 255 para. 2. Uniform Act, art 282-283. Uniform Act, arts 292-293.

Manufacturing Practice". This is a mere call to producers, packagers, or manufacturers to update their machineries, systems or equipment in order to comply with the new technology, capacity and /or legal requirement in their business. Generally, GMP's guidelines provide regulation on products such as foods, drugs, blood and medical devices. Accordingly, countries do update their cGMP regulations for local companies to act in accordance with the legislation. In Cameroon, for instance, the Medical Council is a statutory body that was established in terms of the medicines and related substances control to oversee the regulation of medicines. Nonetheless, the "Standard and Quality Agency (ANOR)" and the "Service of Norms" in the Ministry of Trade and Commerce have a wide mandate to ensure the quality of

Even though not prescribed by the UAGCL, such a business practice or measure is relevant in enhancing the warranty of quality of goods that flood the markets.

<sup>27</sup> Definition of GMP by the World Health Organisation and as per GMP institute found at <http//www.

<sup>28</sup> It was created by Decree No.88/204 of 5 February 1988, re-organising the Ministry of Commerce. See Juridis Périodique no. 5 1991, p. 13. These structures were created with the objective of protecting consumers and ensuring the technical supervision of the quality and quantity of goods through inspection.

<sup>20</sup> Sale of Goods Act, 1979, c. 54, § 14(2)–(2)(B) (Eng.), available at http://www.legislation. gov.uk/ukpga/1979/54; U.C.C.§ 2-314(2)(c) (1977).

<sup>21</sup> These would include the code of ethics of manufacturers' associations, association of advertising practitioners, etc.

<sup>22</sup> Uniform Act, arts 238–239.

*Sales and Conformity of Goods: A Legal Discourse DOI: http://dx.doi.org/10.5772/intechopen.93035*

*Banking and Finance*

of merchantability) [14].

legal process and equal protection under the law.

However, the parties agree on their express stipulation [15].

done in favour of its customers.

subject to public scrutiny [16].

gov.uk/ukpga/1979/54; U.C.C.§ 2-314(2)(c) (1977).

*4.3.1 Ethical values*

process.

referred to in some legal systems to make a sound judgement on the notion of qual-

The above approach can be said to be associated with the merchantability test, which obtains with some common law systems. This test is viewed as comprising more than just the saleability of the goods as those terms in the parties' contract (with description, fitness for purpose, and acceptance being other relevant aspects

Ethical value is an emerging applied subject. It is still currently debated as it is applied to all aspects of business conduct, the manufacturing of goods, and the quality standard of goods. In general, ethical values appear to contribute to the development of legal systems in which contracts are enforced fairly, and bribery and corruption are less prevalent, enabling business entities to have equal access to

At the international level for instance, private initiatives such as the principles laid down in the United Nations Global Compact covering issues such as human rights, labour, environment and anti-corruption aim to assist its member countries to comply with the international standards required on these issues. In Africa, ethical values are known and recognised in international and national sales contracts as one of the solutions to the defective goods as from the manufacturing

An ethical value contractual clause can be express or implied in the contract of sale. When implied, they may be inferred from trade and usages. Whether expressly or impliedly in a contract of sale, they become part of the contract and may be enforced, or their violation sanctioned, in the same way as with any other term.

In Cameroon, for instance, most organised professions and some trade associations have codes of practice which set out ethical behaviour for members in their dealings with their clientele21. For instance, the company in charge of distributing energy makes available to the public an e-mail address for anyone who wants to make a complaint and report any violations of their Code of Business Conduct and Ethics. A clause ensuring ethical code and conduct is prior inserted in the contract signed by customers before they benefit from the services of the company. This is

In line with the above example, it should be pointed out that in most, almost all contracts of sales of goods, including both domestic or international contracts, the quality of goods is not restricted to its physical appearance; it also has to comply with any other requirements which are prescribed by the law or subject to trade and usages22. Therefore, if the origin of the goods prescribes an ethical value standard at production, the standard will definitely constitute a quality of the goods. As a result, the requirement of quality will not be met if the goods produced do not meet with the ethical standard as required. It could therefore be agreed that people incorporate more variety into their consumption decisions when their behaviour is

<sup>20</sup> Sale of Goods Act, 1979, c. 54, § 14(2)–(2)(B) (Eng.), available at http://www.legislation.

<sup>21</sup> These would include the code of ethics of manufacturers' associations, association of advertising

ity or to know whether the goods meet the required standard of quality20.

**250**

practitioners, etc.

<sup>22</sup> Uniform Act, arts 238–239.

It is not easy to determine the non-conformity based on the ethical value23. Such difficulty is due to the hidden character of its nature and also to the fact that it does not physically influence the physical feature of the goods. If the breaching party does not of good faith disclose or cure the defect, an expert may sometimes be required to determine the breach.

Unless the parties have agreed otherwise, failure from the seller to deliver the goods in conformity with the ethical standards amounts to a breach of contract. In particular, when the seller is required to deliver goods that are fit for the purpose for which goods of that nature are commonly used or when a special request on an ethic (such as health and environmental considerations) was made known to the seller24. The buyer remedy will be its rights of redress25 and claim for damages26.

#### *4.3.2 Good manufacturing practice*

GMP refers to the "Good Manufacturing Practice". This is a well-known regulation whose purpose is to ensure the appropriate manufacturing process that would impact on the quality of the products. Good Manufacturing Practice is a series of regulations that are binding on the contracting business parties, (is agreed upon) requiring food producers, manufacturers, pharmaceutical companies, and packagers of drugs to ensure that their products are safe, pure, and totally effective. These regulations are then meant to ensure a level of quality approach to manufacturers of goods in order to protect consumers from contracting for non-effective and dangerous goods. In summary, Good Manufacturing Practice plays a paramount role of quality assurance that ensures that products are consistently produced and controlled to the quality standards appropriate for their intended use and their legal requirements. In some cases, it is simply required by the marketing board or in some countries by the government department in charge of regulating trade and commerce27.

Sometimes, GMP is referred to as Cgmp- meaning "Current Good Manufacturing Practice". This is a mere call to producers, packagers, or manufacturers to update their machineries, systems or equipment in order to comply with the new technology, capacity and /or legal requirement in their business. Generally, GMP's guidelines provide regulation on products such as foods, drugs, blood and medical devices. Accordingly, countries do update their cGMP regulations for local companies to act in accordance with the legislation. In Cameroon, for instance, the Medical Council is a statutory body that was established in terms of the medicines and related substances control to oversee the regulation of medicines. Nonetheless, the "Standard and Quality Agency (ANOR)" and the "Service of Norms" in the Ministry of Trade and Commerce have a wide mandate to ensure the quality of products in meeting the required standards28.

Even though not prescribed by the UAGCL, such a business practice or measure is relevant in enhancing the warranty of quality of goods that flood the markets.

<sup>23</sup> Uniform Act, art 255 para. 1.0.

<sup>24</sup> Uniform Act, art 255 para. 2.

<sup>25</sup> Uniform Act, art 282-283.

<sup>26</sup> Uniform Act, arts 292-293.

<sup>27</sup> Definition of GMP by the World Health Organisation and as per GMP institute found at <http//www. gmp1st.com/index.htm>, Accessed on October 24th, 2009.

<sup>28</sup> It was created by Decree No.88/204 of 5 February 1988, re-organising the Ministry of Commerce. See Juridis Périodique no. 5 1991, p. 13. These structures were created with the objective of protecting consumers and ensuring the technical supervision of the quality and quantity of goods through inspection.

This goes a long way to improve on the quality of goods which the end users would obtain from commercial buyers. Respect of such a measure is left at the wishes of the parties in a contract of sale or could be implied from the trade and usages of specific goods in a given branch of business. This is the very meaning of Articles 237 and 239 of the UAGCL.
